Behind the Golden Curtain

Fordham Law professors Jed Shugerman and Zephyr Teachout discuss Emoluments Clause in age of Trump

Donald Trump’s financial entanglements related to his international business conglomerate, The Trump Organization, and its ties to foreign entities have raised alarming questions about possible constitutional violations that the president refuses to answer. Absent congressional inquiries into these potentially impeachable conflicts another question looms: How can the law be used to stop Trump from willfully violating the Emoluments Clause of the Constitution?

“The big picture from the campaign to the election into the beginning of the presidency is the bizarre, inscrutable behavior of how an American politician could get elected by bending over backward for such a regime as Putin’s.”
–Jed Shugerman

Fordham Law Professor Jed Shugermanmade news earlier this month when he proposed state attorneys general use a writ of quo warranto, an obscure legal action dating back to 12th century England, to challenge the legality of Trump’s corporate charters. Quo warranto, Latin for “by what warrant,” provides New York Attorney General Eric Schneiderman and his colleagues the power to investigate and potentially dissolve Trump’s businesses, while also uncovering his global pecuniary interests, most notably in Russia.

Shugerman credited the work of fellow Fordham Law Professor Zephyr Teachout, specifically her 2014 book Corruption in America, for providing him a clear entry point into the history of the Emoluments Clause that inspired his legal discovery. Article 1, Section 9, Clause 8 of the Constitution, commonly knowne as the Emoluments Clause, bans any person holding any office of profit or trust from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

“The combination of Zephyr’s emoluments research and my suggestion of using quo warranto corporate dissolution proceedings opens the door to find out what we should have known from the beginning, which is what are the president’s financial entanglements,” Shugerman said during a joint interview with Teachout.

“This is a constitutional crisis, where we do not know about the degree of financial entanglement between our president and his administration with a foreign government,” Teachout said, with respect to Trump and Russia.

Trump’s direct financial ties to Russia remain hazy, though allegations tying him to that country’s banks have been widely speculated about in the American media pre- and post-election. Such ties, if true, would potentially explain why Trump has declined to criticize Russia, even as American intelligence agencies have concluded that the country interfered in the U.S. presidential election.

In addition, numerous members of Trump’s inner circle, including disgraced former National Security Advisor Mike Flynn, former Trump campaign manager Paul Manafort, and former Trump foreign policy advisor Carter Page, have had their ties to Russia exposed. Flynn resigned after reports surfaced he had contacted Russian leaders prior to Trump’s inauguration and was potentially vulnerable to blackmail.

“The big picture from the campaign to the election into the beginning of the presidency is the bizarre, inscrutable behavior of how an American politician could get elected by bending over backward for such a regime as Putin’s,” Shugerman explained.

While Trump’s potential Russian conflicts remain in shadows, many of his global business empire’s conflicts are as clear as day.

Trump refused to divest from his businesses or put them in blind trust after Nov. 8, instead opting to place the businesses in the hands of his two adult sons. That means he receives cash and favors from foreign governments, which can curry favor with him through hotel stays, building leases, and real estate deals, whether in the United States or abroad, according to CREW’s lawsuit.

“This is a constitutional crisis, where we do not know about the degree of financial entanglement between our president and his administration with a foreign government.”
–Zephyr Teachout

At present, Trump’s corporation does business with China, India, Indonesia, the Philippines, and several other countries, and his acceptance of benefits from any of their governments violates the U.S. Constitution, CREW’s lawsuit states. He also hosts diplomatic meetings with foreign heads of state, such as Japanese Prime Minister Shinzo Abe, at his Florida resort, Mar-a-Lago.

Shugerman is working with the nonpartisan Free Speech for People to encourage Schneiderman to investigate the Trump businesses’ conflicts in New York. As New York attorney general, Schneiderman has a history with Trump: his suit against Trump University for defrauding students led to a $25 million settlement, and he has also investigated Trump’s family foundation.

States, as public entities, have clear standing against the private Trump business organization should they seek quo warranto proceedings, Shugerman noted. Conversely, some legal scholars have raised questions about CREW’s ability to achieve standing, given the potential difficulty in proving any one person is more harmed by Trump’s conflicts than another. Shugerman criticized conservative judges who have “erected barriers against individuals promoting a public interest to get public individuals to do their duty.”

“It is perverse, backward, counterintuitive, and wrong for courts to set up barriers for people to make challenges to the most serious, broadest threats to our republic,” Shugerman said.

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Founded in 1841, Fordham is the Jesuit University of New York, offering exceptional education distinguished by the Jesuit tradition to more than 15,100 students in its four undergraduate colleges and its six graduate and professional schools.